12980 Federal Register / Vol. 89, No. 35 / Wednesday, February 21, 2024 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 240208–0039; RTID 0648– 

XR118] 

Endangered and Threatened Wildlife 

and Plants; Final Rule To List the 

Atlantic Humpback Dolphin as an 

Endangered Species Under the 

Endangered Species Act 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, NMFS, are issuing a final 

rule to list the Atlantic humpback 

dolphin (Sousa teuszii) as endangered 

under the Endangered Species Act 

(ESA), in response to a petition from the 

Animal Welfare Institute, the Center for 

Biological Diversity, and VIVA Vaquita. 

We have reviewed the status of the 

Atlantic humpback dolphin, including 

efforts being made to protect the 

species, and considered public 

comments submitted on the proposed 

listing rule as well as new information 

received since publication of the 

proposed rule. Based on all of this 

information, we have determined that 

the Atlantic humpback dolphin 

warrants listing as an endangered 

species. We will not designate critical 

habitat for this species, because the 

geographical areas occupied by this 

species are entirely outside U.S. 

jurisdiction. 

DATES: This final rule is effective March 

22, 2024. 

ADDRESSES: References and documents 

supporting this final rule are available 

online at: https://www.fisheries.noaa.

gov/species/atlantic-humpbackdolphin#conservation-management, or 

may be obtained by contacting Heather 

Austin, Endangered Species 

Conservation Division, NMFS Office of 

Protected Resources (F/PR3), 1315 East 

West Highway, Silver Spring, MD 

20910. Public comments are available 

online at https://www.regulations.gov, 

search docket number NOAA–NMFS– 

2021–0110 (note: copying and pasting 

the FDMS Docket Number directly from 

this document may not yield search 

results). 

FOR FURTHER INFORMATION CONTACT: 

Heather Austin, NMFS Office of 

Protected Resources, Heather.Austin@

noaa.gov, 301–427–8422. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 8, 2021, we received a 

petition from the Animal Welfare 

Institute, the Center for Biological 

Diversity, and VIVA Vaquita to list the 

Atlantic humpback dolphin (Sousa 

teuszii) as a threatened or endangered 

species under the ESA. On December 2, 

2021, we published a 90-day finding for 

the Atlantic humpback dolphin with 

our determination that the petition 

presented substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted 

(86 FR 68452). We also announced the 

initiation of a status review of the 

species, as required by section 4(b)(3)(A) 

of the ESA, and requested information 

to inform the agency’s decision on 

whether this species warrants listing as 

endangered or threatened under the 

ESA. On April 7, 2023, we published a 

proposed rule to list the Atlantic 

humpback dolphin as endangered (88 

FR 20829). We requested public 

comments on the information in the 

proposed rule and associated status 

review during a 60-day public comment 

period, which closed on June 6, 2023. 

Following publication of the proposed 

rule (88 FR 20829), we became aware of 

cartographic guidance bulletin 38, 

issued by the Department of State’s 

Office of the Geographer and Global 

Issues on December 16, 2020, and 

determined that the preamble to our 

proposed rule was not in alignment 

with the guidance. Thus, we issued a 

correction notice to remove all 

references to ‘‘Western Sahara’’ from the 

proposed rule’s preamble and identify 

Morocco as a country within the 

species’ range, per the guidance (88 FR 

46727). Additionally, the correction 

notice included changes to the 

‘‘International Regulatory Mechanisms’’ 

subsection of the proposed rule 

resulting from the inclusion of Morocco 

as a range country for the Atlantic 

humpback dolphin (88 FR 46727). We 

also reopened the public comment 

period for the proposed rule for an 

additional 60 days, which closed on 

September 18, 2023, to allow the 

Kingdom of Morocco, as well as any 

other interested person, an opportunity 

to provide comments on our proposal. 

We found that bringing the preamble to 

the proposed rule to list the Atlantic 

humpback dolphin into alignment with 

the guidance bulletin presented good 

cause for reopening the public comment 

period, in accordance with 50 CFR 

424.16(c)(2). 

This final rule provides a discussion 

of the public comments received in 

response to the proposed rule, the 

correction notice, and our final 

determination on the petition to list the 

Atlantic humpback dolphin under the 

ESA. 

Listing Determinations Under the ESA 

We are responsible for determining 

whether species are threatened or 

endangered under the ESA (16 U.S.C. 

1531 et seq.). To make this 

determination, we first consider 

whether a group of organisms 

constitutes a ‘‘species,’’ which is 

defined in section 3 of the ESA to 

include ‘‘any subspecies of fish or 

wildlife or plants, and any distinct 

population segment of any species of 

vertebrate fish or wildlife which 

interbreeds when mature’’ (16 U.S.C. 

1532(16)). On February 7, 1996, NMFS 

and the U.S. Fish and Wildlife Service 

(USFWS; together, the Services) adopted 

a policy describing what constitutes a 

distinct population segment (DPS) of a 

taxonomic species (‘‘DPS Policy,’’ 61 FR 

4722). The joint DPS Policy identifies 

two elements that must be considered 

when identifying a DPS: (1) the 

discreteness of the population segment 

in relation to the remainder of the taxon 

to which it belongs; and (2) the 

significance of the population segment 

to the remainder of the taxon to which 

it belongs. 

Section 3 of the ESA defines an 

endangered species as any species 

which is in danger of extinction 

throughout all or a significant portion of 

its range and a threatened species as one 

which is likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range (16 

U.S.C. 1532(6), 16 U.S.C. 1532(20)). 

Thus, we interpret an ‘‘endangered 

species’’ to be one that is presently in 

danger of extinction. A ‘‘threatened 

species,’’ on the other hand, is not 

presently in danger of extinction, but is 

likely to become so in the foreseeable 

future (that is, at a later time). In other 

words, the primary statutory difference 

between a threatened species and an 

endangered species is the timing of 

when a species may be in danger of 

extinction, either presently 

(endangered) or not presently but within 

the foreseeable future (threatened). 

Under section 4(a)(1) of the ESA and 

our implementing regulations, we must 

determine whether any species is 

endangered or threatened as a result of 

any one or a combination of any of the 

following factors: (A) the present or 

threatened destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 


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mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence (16 U.S.C. 1533(a)(1); 50 CFR 

424.11(c)). We are also required to make 

listing determinations based solely on 

the best scientific and commercial data 

available, after conducting a review of 

the species’ status and after taking into 

account efforts, if any, being made by 

any state or foreign nation (or 

subdivision thereof) to protect the 

species (16 U.S.C. 1533(b)(1)(A)). 

In assessing the extinction risk of the 

Atlantic humpback dolphin, we 

considered demographic risk factors, 

such as those developed by McElhany et 

al. (2000), to organize and evaluate the 

forms of risks. The approach of 

considering demographic risk factors to 

help frame the consideration of 

extinction risk has been used in many 

of our previous status reviews (see 

https://www.nmfs.noaa.gov/pr/species 

for links to these reviews). Under this 

approach, the collective condition of 

individual populations is considered at 

the species level according to four 

demographic risk factors: (1) abundance; 

(2) growth rate and productivity; (3) 

spatial distribution and connectivity; 

and (4) genetic diversity. These risk 

factors reflect concepts that are wellfounded in conservation biology and 

that individually and collectively 

provide strong indicators of extinction 

risk. 

Scientific conclusions about the 

overall risk of extinction faced by the 

Atlantic humpback dolphin under 

present conditions and in the 

foreseeable future are based on our 

evaluation of the species’ demographic 

risks and section 4(a)(1) threat factors. 

Our assessment of overall extinction 

risk considered the likelihood and 

contribution of each particular factor, 

synergies among contributing factors, 

and the cumulative impact of all 

demographic risks and threats on the 

species. 

Section 4(b)(1)(A) of the ESA requires 

the Secretary, when making a listing 

determination for a species, to take into 

consideration those efforts, if any, being 

made by any State or foreign nation, or 

any political subdivision of a State or 

foreign nation, to protect the species. 

Therefore, prior to making a listing 

determination, we also assessed 

protective efforts to determine if they 

are adequate to mitigate the existing 

threats. 

Summary of Comments 

In response to our request for 

comments on the proposed rule and the 

subsequent correction notice, we 

received a total of 18 public comments 

from non-governmental organizations, 

foreign governments, and individual 

members of the public. All comments 

were supportive of the proposed 

endangered listing for the Atlantic 

humpback dolphin and the large 

majority provided no new or substantive 

data or information relevant to the 

listing of the Atlantic humpback 

dolphin that was not already considered 

in the status review report (Austin 2023) 

and proposed rule. We have considered 

all public comments, and we provide 

responses to all relevant issues raised by 

comments as summarized below. 

Comment 1: All public comments 

received were supportive of the 

proposed listing determination for the 

Atlantic humpback dolphin as 

endangered. A majority of these 

comments were general statements 

expressing support for listing the 

Atlantic humpback dolphin as 

endangered under the ESA. A few 

commenters described general 

repercussions within the ecosystem of 

the coastal Atlantic waters of western 

Africa, if this species went extinct. Most 

of these comments were not 

accompanied by information or 

references. Several of the comments 

were accompanied by information that 

is consistent with, or cited directly 

from, our proposed rule or draft status 

review report (Austin 2023). 

A number of commenters reiterated 

information and many of the points 

from the draft status review report 

(Austin 2023) and proposed rule for the 

Atlantic humpback dolphin, notably the 

species small population size, 

fragmented distribution, restricted range 

in coastal Atlantic waters of western 

Africa, the severity of range-wide threats 

(fisheries bycatch and human use, 

coastal development, and the 

inadequacy of existing regulatory 

mechanisms to protect the dolphin), and 

the need for more stringent regulations 

to protect the species. In addition, a 

couple of commenters reiterated 

information from the draft status review 

report (Austin 2023) and proposed rule 

regarding the species’ conservation 

efforts to date, most notably the recent 

assessment by the International Union 

for Conservation of Nature (IUCN) 

which classified the Atlantic humpback 

dolphin into the Red List category of 

‘‘Critically Endangered’’ in 2017, and 

the conservation efforts by the 

Convention on the Conservation of 

Migratory Species of Wild Animals 

(CMS or Bonn Convention) and West 

African Cetacean Research and 

Conservation Programme (WAFCET) 

since the 1990s. 

Several commenters also noted that 

this listing would: (1) help raise 

awareness for the species; (2) help 

scientists and conservationists 

protecting the Atlantic humpback 

dolphin to raise funds for projects 

aimed at conserving this species and its 

habitat; (3) foster international 

cooperation and facilitate increased 

collaboration to improve outcomes of 

any conservation actions; (4) facilitate 

the enhancement of legal protections in 

the national laws of the species’ range 

countries (especially relating to laws 

addressing bycatch); and (5) strengthen 

the monitoring, control, and 

surveillance regimes in each range 

country. Additionally, one commenter 

noted that protecting this species under 

the ESA would help encourage 

commercial farmers and industries 

within this species’ habitat to be 

conscientious about avoiding the 

Atlantic humpback dolphin during 

fishing activities, which would 

hopefully lead to more sustainable and 

ethical fishing practices to protect other 

wildlife as well. 

Response: We acknowledge all of 

these comments in support of our listing 

determination and the public interest in 

conserving the Atlantic humpback 

dolphin. 

Comment 2: We received a comment 

letter from a group of commenters that 

stated that the final rule on fish and fish 

product import provisions of the Marine 

Mammal Protection Act (MMPA import 

rule) (81 FR 54389, August 15, 2016) 

may help to provide external motivation 

for Atlantic humpback dolphin range 

countries that export fish and fish 

products to the United States. The 

commenters also provided some new 

scientific and commercial information 

related to the threat of fisheries bycatch 

to the Atlantic humpback dolphin off 

the coasts of Mauritania and Senegal. 

Specifically, the commenters 

emphasized that there are records of 

Atlantic humpback dolphins being 

bycaught off the coasts of Mauritania 

and Senegal based on reports by 

Gascoigne et al. (2021a, b, and c), and 

these reports also note that most coastal 

fisheries have high overlap with this 

species’ habitat preferences. The 

commenters discussed the Marine 

Stewardship Council (MSC), a nonprofit organization which aims to set 

standards for sustainable fishing. 

Fisheries that wish to demonstrate that 

they are well-managed and sustainable 

compared to MSC’s standards are 

assessed to evaluate whether they meet 

MSC’s environmental standard for 

sustainable fishing. Based on the reports 

by Gascoigne et al. (2021a, b, and c), the 

coastal fisheries in this region were 

unable to proceed to the next level of 

the MSC’s certification due in part to 

the potential high risk posed to the 


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Atlantic humpback dolphin and other 

species. Additionally, the commenters 

submitted updated information on 

distribution, sightings, and habitat 

parameters for the species within the 

Saloum Delta in Senegal (specifically 

the preliminary results of the 2021 and 

2022 S. teuszii surveys in the Saloum 

Delta, Senegal) with the majority 

sightings clustered in the Saloum River 

in the northern portion of the delta 

(Minton et al. 2022). Lastly, the 

commenters provided information about 

a male Atlantic humpback dolphin that 

washed ashore on the coast of 

Mauritania just south of Banc d’Arguin 

National Park on May 10, 2013 (Bilal et 

al. 2023). 

Response: We reviewed the scientific 

and commercial information submitted 

by the commenters related to the threat 

of fisheries bycatch to the Atlantic 

humpback dolphin off the coasts of 

Mauritania and Senegal, and the 

updated information the commenters 

submitted on distribution, sightings, 

and habitat parameters for the species 

within the Saloum Delta in Senegal. 

While most of the material cited and/or 

provided by these commenters had 

already been considered in our status 

review report (Austin 2023) and 

proposed rule, we have updated our 

status review report (Austin 2023) to 

include the new information regarding 

the distribution, sightings, and habitat 

parameters for the Atlantic humpback 

dolphin within the Saloum Delta in 

Senegal, from the preliminary results of 

the 2021 and 2022 S. teuszii surveys in 

the Saloum Delta described in Minton et 

al. (2022). We also incorporated new 

information related to the threat of 

fisheries bycatch off the coasts of 

Mauritania and Senegal into our status 

review report (Austin 2023). 

Additionally, we included information 

in our status review report (Austin 

2023) regarding a record of a male 

Atlantic humpback dolphin specimen 

washed ashore on the coast of 

Mauritania just south of Banc d’Arguin 

National Park on May 10, 2013 (Bilal et 

al. 2023). We find that although this 

new information does not alter our 

previous conclusions regarding the 

threat of bycatch in this region, it 

further supports our endangered listing 

determination for this species. 

Comment 3: Some commenters 

expressed strong support for our 

conclusion that the inadequacy of legal 

protections in the range countries of the 

Atlantic humpback dolphin are 

contributing to a high risk of extinction 

for this species. These commenters 

conducted a review of the current laws 

and regulations in Atlantic humpback 

dolphin range countries to assess if 

there had been any changes in the legal 

framework since the CMS’ Draft Single 

Species Action Plan (Action Plan) was 

drafted in 2022. They found that the 

regulatory framework in place at the 

time of their work on the Action Plan 

remains the same, with no apparent 

evidence of any improvements in 

protections for this species generally or 

from the threat of bycatch in particular. 

Consequently, the commenters 

concluded that their findings support 

our conclusion in the proposed rule 

regarding the inadequacy of existing 

regulatory mechanisms to address the 

primary threats to Atlantic humpback 

dolphins (i.e., bycatch and coastal 

development). 

Additionally, these commenters refer 

to the discussion in the status review 

report (Austin 2023) about the 

difficulties faced by Senegal in 

enforcing its longstanding ban on 

monofilament nets and noted that there 

is presently no indication that the 

country of Senegal is making any 

headway on this management issue. In 

support of this statement, the 

commenters cite an April 2023 news 

article from ‘‘Voice of America’’ that 

discusses the threats faced by the 

Atlantic humpback dolphin in 

Senegalese waters (see Voice of 

America, ‘‘Senegal: Critically 

Endangered Dolphin Threatened by 

Illegal Fishing Nets,’’ April 11, 2023). 

Response: We appreciate and 

acknowledge the commenters’ support 

of our conclusions for ESA listing 

criterion D (the inadequacy of existing 

regulatory mechanisms), in particular 

regarding how the inadequacy of legal 

protections in the species’ range 

countries contributes to a high risk of 

extinction for the Atlantic humpback 

dolphin. Additionally, we agree that 

there have been no changes in the legal 

status quo since these commenters 

initially researched and compiled the 

legislative summary within the CMS’ 

Draft Single Species Action Plan, and 

that there is no indication of improved 

protections, in general or from the threat 

of bycatch in particular, for the Atlantic 

humpback dolphin. As described in our 

status review report (Austin 2023) and 

proposed rule, regulatory mechanisms 

that currently exist are not adequate to 

address the species’ primary threats of 

bycatch and coastal development, due 

to lack of enforcement, resources, 

implementation, and/or effectiveness 

within each range country. Thus, we 

maintain our conclusion that the 

inadequacy of existing regulatory 

mechanisms contributes to a high risk of 

extinction for the Atlantic humpback 

dolphin. 

Additionally, we note the 

commenters’ statement that there is no 

indication of improved enforcement of 

the monofilament net ban in Senegalese 

waters. We agree that the best available 

scientific and commercial data supports 

that conclusion. Therefore, we 

incorporated this new information into 

our status review report (Austin 2023), 

and find it further supports our 

endangered listing determination for the 

Atlantic humpback dolphin. 

Comment 4: One commenter 

proposed a new strategy to recover and 

conserve the species via a proposed 

conservation policy which targets the 

species’ primary threat of fisheries 

bycatch and is predicated on financial 

assistance under section 8(a) of the ESA, 

with an emphasis on the Saloum Delta 

region of Senegal (the commenter notes 

that this area houses a concentrated 

population of the species and Senegal 

already has enacted laws focused on 

conservation). The commenter stated 

that section 8(a) of the ESA provides the 

Executive Branch with discretion to 

disburse monies to foreign countries to 

aid in the development and 

management of programs ‘‘useful for the 

conservation of any endangered 

species’’ (16 U.S.C. 1537(a)). The 

commenter states that NMFS should 

provide financial assistance to Senegal 

under section 8(a) of the ESA, in 

collaboration with the United States 

Agency for International Development 

(USAID). To support this proposition, 

the commenter included citations to 

foreign policy articles regarding the 

Biden Administration’s Africa strategy 

and USAID’s Municipal Waste 

Recycling Program, as well as sources 

discussing the use of acoustic 

instruments that act as a deterrent to 

dolphins by allowing them to 

echolocate monofilament fishing nets 

(i.e., pingers), which have been shown 

to reduce bycatch in other dolphin 

species around the world. 

Response: We appreciate the 

commenter’s input and ideas for how to 

advance recovery for the Atlantic 

humpback dolphin. However, because 

this comment addresses potential future 

conservation efforts for the Atlantic 

humpback dolphin, it is not relevant to 

our assessment of extinction risk and 

the final listing determination for the 

Atlantic humpback dolphin. 

Comment 5: We received comments 

from two foreign countries, the 

Kingdom of Morocco and the Republic 

of Cameroon, expressing support for 

listing the Atlantic humpback dolphin 

as endangered under the ESA. Each 

country also provided additional 

information regarding existing domestic 

laws in their respective countries to 


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protect the species. The Kingdom of 

Morocco submitted documentation from 

its Order of the Minister of Agriculture, 

Maritime Fisheries, Rural Development 

and Waters and Forests No. 464–23 

(signed February 21, 2023), which 

prohibits fishing for the Atlantic 

humpback dolphin in Moroccan 

maritime waters for a period of 25 years, 

beginning on June 1, 2023. The Republic 

of Cameroon submitted documentation 

from their Ministry of Forestry and 

Wildlife ‘‘Establishing the Modality of 

the Distribution of Animal Species in 

Protected Classes,’’ which lists the 

Atlantic humpback dolphin, along with 

four other marine mammal species, as a 

legally protected species within the 

waters of Cameroon (Arreˆte ́ N°0053/ 

Ministry of Forestry and Wildlife 

(MINFOF), passed on April 1, 2020). 

A separate public comment also 

reiterated information provided by the 

Kingdom of Morocco, and noted that 

recent efforts have been made by the 

Kingdom of Morocco to help mitigate 

threats to the species by highlighting 

that the prohibition of any harmful act 

towards the species in Moroccan 

maritime waters has been established 

for a period of 25 years. The commenter 

also agreed with our proposal to list the 

species as endangered under the ESA 

and our issuance of the correction 

notice to include Morocco as a country 

within the species’ range. 

Response: We appreciate these 

comments from the Kingdom of 

Morocco and the Republic of Cameroon 

supporting our Atlantic humpback 

dolphin listing determination. 

Additionally, we reviewed the 

supporting documentation regarding 

legal protections afforded to the species 

in these two countries and incorporated 

this new information into the status 

review report (Austin 2023). While we 

acknowledge that the Kingdom of 

Morocco and Republic of Cameroon 

have legal protections in place for the 

Atlantic humpback dolphin, these 

countries are only two of the four (out 

of 19) range countries that have specific 

protections for the Atlantic humpback 

dolphin, and effective bycatch 

mitigation has not been documented in 

most range countries. This is a serious 

concern, given that bycatch is 

considered linked to the species’ 

population decline and poses an 

immediate range-wide threat. 

Additionally, because Morocco’s 

prohibition is new (i.e., it became 

effective on June 1, 2023), we cannot yet 

gauge its effectiveness in protecting the 

Atlantic humpback dolphin in 

Moroccan maritime waters. As 

described in our status review report 

(Austin 2023) and proposed rule, 

regulatory mechanisms that currently 

exist throughout the majority of the 

species’ range are not adequate to 

address the species’ primary threats of 

bycatch and coastal development, due 

to lack of enforcement, resources, 

implementation, and/or effectiveness 

within most range countries. 

Additionally, government agencies in 

many range countries lack the resources 

to effectively monitor and mitigate 

threats and to design and implement 

research and conservation measures 

specific to the Atlantic humpback 

dolphin. As such, we ranked ESA listing 

criterion D (the inadequacy of existing 

regulatory mechanisms) as a ‘‘high’’ 

level threat, particularly due to lack of 

enforcement, resources, 

implementation, and/or effectiveness 

within each range country. We maintain 

our conclusion that inadequacy of 

existing regulatory mechanisms 

contributes to a high risk of extinction 

for the Atlantic humpback dolphin. 

Therefore, we conclude the new 

information regarding legal protections 

afforded to the Atlantic humpback 

dolphin provided by the Kingdom of 

Morocco and the Republic of Cameroon 

does not alter our conclusion that the 

Atlantic humpback dolphin meets the 

definition of an endangered species 

under the ESA. 

Summary of Changes From the 

Proposed Listing Rule 

We did not receive, nor did we find, 

data or references that presented 

substantial new information to change 

our proposed listing determination. We 

did, however, make some revisions to 

the status review report (Austin 2023) to 

incorporate, as appropriate, relevant 

information that we received in 

response to our request for public 

comments or identified ourselves. 

Specifically, we updated the status 

review report (Austin 2023) to include 

new information regarding the 

distribution, sightings, and habitat 

parameters for the Atlantic humpback 

dolphin within the Saloum Delta in 

Senegal and information about the male 

Atlantic humpback dolphin that washed 

ashore on the coast of Mauritania. We 

also updated the status review report 

(Austin 2023) to include new 

information related to the threat of 

fisheries bycatch off the coasts of 

Mauritania and Senegal. Lastly, we 

incorporated into our status review 

report (Austin 2023) additional 

information regarding existing domestic 

laws from the Kingdom of Morocco and 

the Republic of Cameroon that protect 

the Atlantic humpback dolphin in these 

countries’ waters. 

Status Review 

The status review for the Atlantic 

humpback dolphin was completed by 

NMFS staff from the Office of Protected 

Resources. To complete the status 

review, we compiled the best scientific 

and commercial data available on the 

species’ biology, ecology, life history, 

threats, and conservation status by 

examining the petition and cited 

references, and by conducting a 

comprehensive literature search and 

review. We also considered information 

submitted to us in response to our 

petition finding. The draft status review 

report (Austin 2023) was subjected to 

independent peer review as required by 

the Office of Management and Budget 

Final Information Quality Bulletin for 

Peer Review (M–05–03, December 16, 

2004). The draft status review report 

(Austin 2023) was peer reviewed by four 

independent scientists selected from the 

academic and scientific community 

with expertise in cetacean biology, 

conservation, and management, and 

with specific knowledge of the Atlantic 

humpback dolphin. The peer reviewers 

were asked to evaluate the adequacy, 

appropriateness, and application of data 

used in the draft status review report 

(Austin 2023) as well as the findings 

made in the ‘‘Extinction Risk Analysis’’ 

section of the report. All peer reviewer 

comments were addressed prior to 

finalizing the draft status review report 

(Austin 2023) that was subsequently 

made available to the public at the 

proposed rule stage. 

We subsequently reviewed the status 

review report (Austin 2023), and its 

cited references, and we find the status 

review report (Austin 2023), upon 

which the proposed and final rules are 

based, provides the best available 

scientific and commercial data on the 

Atlantic humpback dolphin. All peer 

reviewer comments are available online 

at: https://www.noaa.gov/informationtechnology/endangered-species-actstatus-review-report-atlantic-humpbackdolphin-sousa-teuszii-id447. The final 

status review report (cited as Austin 

2023) is available online at: https://

www.fisheries.noaa.gov/species/ 

atlantic-humpback-dolphin#

conservation-management. 

ESA Section 4(a)(1) Factors Affecting 

the Atlantic Humpback Dolphin 

As stated previously and as discussed 

in the proposed rule (88 FR 20829, April 

7, 2023), we considered whether any 

one or a combination of the five threat 

factors specified in section 4(a)(1) of the 

ESA is contributing to the extinction 

risk of the Atlantic humpback dolphin. 

A few commenters provided additional 


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information related to threats such as 

fisheries bycatch and the inadequacy of 

existing regulatory mechanisms in a 

number of Atlantic humpback dolphin 

range countries. The information 

provided was consistent with or 

reinforced information in the status 

review report (Austin 2023) and 

proposed rule, and thus did not change 

our conclusions regarding any of the 

section 4(a)(1) factors. Therefore, we 

incorporate and affirm herein all 

information, discussion, and 

conclusions regarding the factors 

affecting the Atlantic humpback 

dolphin from the final status review 

report (Austin 2023) and the proposed 

rule (88 FR 20829, April 7, 2023). 

Extinction Risk 

As discussed previously, the status 

review evaluated the demographic risks 

to the Atlantic humpback dolphin 

according to four categories: (1) 

abundance; (2) growth rate and 

productivity; (3) spatial distribution and 

connectivity; and (4) genetic diversity 

(see McElhany et al. (2000)). As a 

concluding step, after considering the 

best available information regarding 

demographic and other threats to the 

species, we rated the species’ extinction 

risk according to a qualitative scale 

(high, moderate, and low risk). While 

we updated our status review report 

(Austin 2023) as described above (see 

Summary of Changes from the Proposed 

Listing Rule) with (1) the latest threat 

information for the Atlantic humpback 

dolphin, (2) information on distribution, 

sightings, and habitat parameters for the 

species within Senegal, and (3) 

information about the male Atlantic 

humpback dolphin which washed 

ashore on the coast of Mauritania, none 

of the comments or information we 

received on the proposed rule changed 

the outcome of our extinction risk 

analysis for the species. As such, our 

conclusions regarding extinction risk for 

the Atlantic humpback dolphin remain 

the same. Therefore, we incorporate and 

affirm, herein, all information, 

discussion, and conclusions on the 

extinction risk of the Atlantic humpback 

dolphin in the final status review report 

(Austin 2023) and proposed rule (88 FR 

20829, April 7, 2023). 

Protective Efforts 

In addition to regulatory measures 

(e.g., fishing and gillnet regulations and 

domestic laws), we considered other 

efforts being made to protect the 

Atlantic humpback dolphin. We 

considered whether such protective 

efforts altered the conclusions of the 

extinction risk analysis for this species; 

however, none of the information we 

received on the proposed rule affected 

our conclusions regarding conservation 

efforts to protect the dolphin. Therefore, 

we incorporate and affirm herein all 

information, discussion, and 

conclusions on the protective efforts of 

the Atlantic humpback dolphin in the 

final status review report (Austin 2023) 

and proposed rule (88 FR 20829, April 

7, 2023). 

Final Listing Determination 

We summarize the factors supporting 

our final listing determination as 

follows: (1) the best scientific and 

commercial data available indicates that 

the species has a low abundance, with 

fewer than 3,000 dolphins likely 

remaining, with observed or suspected 

population declines increasing the risk 

of local extirpation for extremely small 

stocks (e.g., Dakhla Bay and Angola) in 

the near future; (2) continued declines 

in abundance are expected given the 

ongoing and projected increase of 

identified range-wide threats 

(specifically, fisheries bycatch and 

coastal development), suggesting that 

the species will continue to decline in 

the absence of interventions; (3) the 

Atlantic humpback dolphin has a 

fragmented distribution with limited 

connectivity between stocks; (4) the 

Atlantic humpback dolphin has a 

restricted geographic range, being 

endemic to the tropical and subtropical 

waters along the Atlantic African coast 

where ongoing habitat destruction 

(including coastal development) 

contributes to a high risk of extinction; 

(5) the species’ preference for nearshore 

habitat increases its vulnerability to 

incidental capture (i.e., fisheries 

bycatch) which also contributes to a 

high risk of extinction; and (6) existing 

regulatory mechanisms are inadequate 

for addressing the most important 

threats of fisheries bycatch and coastal 

development. 

As a result of the foregoing findings, 

which are based on the best scientific 

and commercial data available, as 

summarized herein, in our proposed 

rule (88 FR 20829, April 7, 2023), and 

in the status review report (Austin 

2023), and after consideration of 

protective efforts, we find that the 

Atlantic humpback dolphin is presently 

in danger of extinction throughout its 

range. Therefore, we find that the 

Atlantic humpback dolphin meets the 

definition of an endangered species 

under the ESA and list it as such. 

Effects of Listing 

Conservation measures provided for 

species listed as endangered or 

threatened under the ESA include the 

development and implementation of 

recovery plans (16 U.S.C. 1533(f)); 

designation of critical habitat, if prudent 

and determinable (16 U.S.C. 

1533(a)(3)(A)); and a requirement that 

Federal agencies consult with NMFS 

under section 7 of the ESA to ensure 

their actions are not likely to jeopardize 

the species or result in adverse 

modification or destruction of 

designated critical habitat (16 U.S.C. 

1536). For endangered species, 

protections also include prohibitions 

related to ‘‘take’’ and trade (16 U.S.C. 

1538). Take is defined as to harass, 

harm, pursue, hunt, shoot, wound, kill, 

trap, capture, or collect, or to attempt to 

engage in any such conduct (16 U.S.C. 

1532(19)). Recognition of the species’ 

imperiled status through listing may 

also promote conservation actions by 

Federal and state agencies, foreign 

entities, private groups, and individuals. 

Activities That Would Constitute a 

Violation of Section 9 of the ESA 

On July 1, 1994, NMFS and the U.S. 

Fish and Wildlife Service (USFWS) 

published a policy (59 FR 34272) that 

requires us to identify, to the maximum 

extent practicable, at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the ESA. The intent of this 

policy is to increase public awareness of 

the potential effects of species listings 

on proposed and ongoing activities. 

Because we are listing the Atlantic 

humpback dolphin as endangered, all of 

the prohibitions of section 9(a)(1) of the 

ESA will apply to this species. Section 

9(a)(1) includes prohibitions against the 

import, export, use in foreign 

commerce, and ‘‘take’’ of the listed 

species. These prohibitions apply to all 

persons subject to the jurisdiction of the 

United States, including all persons in 

the United States or its territorial sea, 

and U.S. citizens on the high seas. 

Activities that could result in a violation 

of section 9 prohibitions for Atlantic 

humpback dolphins include, but are not 

limited to, the following: 

(1) Delivering, receiving, carrying, 

transporting, or shipping in interstate or 

foreign commerce any Atlantic 

humpback dolphin or any of its parts, in 

the course of a commercial activity; 

(2) Selling or offering for sale in 

interstate or foreign commerce any part 

of an Atlantic humpback dolphin, 

except antique articles at least 100 years 

old; and 

(3) Importing or exporting Atlantic 

humpback dolphins or any parts of 

these dolphins. 

Whether a violation results from a 

particular activity is entirely dependent 

upon the facts and circumstances of 

each incident. Further, an activity not 


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Federal Register / Vol. 89, No. 35 / Wednesday, February 21, 2024 / Rules and Regulations 12985 

listed here may in fact constitute a 

violation of the ESA. 

Identification of Those Activities That 

Would Not Likely Constitute a Violation 

of Section 9 of the ESA 

Although the determination of 

whether any given activity constitutes a 

violation is fact dependent, we consider 

the following actions, depending on the 

circumstances, as being unlikely to 

violate the prohibitions in ESA section 

9 with regard to Atlantic humpback 

dolphins: (1) take authorized by, and 

carried out in accordance with the terms 

and conditions of, an ESA section 

10(a)(1)(A) permit issued by NMFS for 

purposes of scientific research or the 

enhancement of the propagation or 

survival of the species; and (2) 

continued possession of Atlantic 

humpback dolphins or any parts that 

were in possession at the time of listing. 

Such parts may be non-commercially 

exported or imported; however, the 

importer or exporter must be able to 

provide evidence to show that the parts 

meet the criteria of ESA section 9(b)(1) 

(i.e., held in a controlled environment at 

the time of listing, in a non-commercial 

activity). 

Identifying Section 7 Consultation 

Requirements 

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) 

of the ESA and joint NMFS/USFWS 

regulations require Federal agencies to 

consult with NMFS to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of listed species or 

destroy or adversely modify critical 

habitat. It is unlikely that the listing of 

the Atlantic humpback dolphin under 

the ESA will increase the number of 

section 7 consultations because this 

species occurs outside of the United 

States and is unlikely to be affected by 

U.S. Federal actions. 

Critical Habitat 

Critical habitat is defined in section 3 

of the ESA (16 U.S.C. 1532(5)) as: (1) the 

specific areas within the geographical 

area occupied by a species, at the time 

it is listed in accordance with the ESA, 

on which are found those physical or 

biological features (a) essential to the 

conservation of the species and (b) 

which may require special management 

considerations or protection; and (2) 

specific areas outside the geographical 

area occupied by a species at the time 

it is listed upon a determination that 

such areas are essential for the 

conservation of the species. 

‘‘Conservation’’ means the use of all 

methods and procedures needed to 

bring an endangered or threatened 

species to the point at which listing 

under the ESA is no longer necessary. 

Section 4(a)(3)(A) of the ESA (16 U.S.C. 

1533(a)(3)(A)) requires that, to the 

extent prudent and determinable, 

critical habitat be designated 

concurrently with the listing of a 

species. However, critical habitat cannot 

be designated in foreign countries or 

other areas outside U.S. jurisdiction (50 

CFR 424.12(g)). The Atlantic humpback 

dolphin is endemic to coastal Atlantic 

waters of western Africa and does not 

occur within areas under U.S. 

jurisdiction, which are well outside the 

natural range of this species. Therefore, 

we are not designating critical habitat 

for this species. 

Peer Review 

In December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review establishing minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation. The OMB Bulletin 

implemented under the Information 

Quality Act (Pub. L. 106–554), is 

intended to enhance the quality and 

credibility of the Federal Government’s 

scientific information, and applies to 

influential scientific information or 

highly influential scientific assessments 

disseminated on or after June 16, 2005. 

To satisfy our requirements under the 

OMB Bulletin, we solicited peer review 

comments on the draft status review 

report (Austin 2023) from four 

independent scientists selected from the 

academic and scientific community 

with expertise on cetaceans in general 

and specific knowledge regarding the 

Atlantic humpback dolphin in 

particular. We received and reviewed 

comments from these scientists and, 

prior to publication of the proposed 

rule, incorporated their comments into 

the draft status review report (Austin 

2023), which was then made available 

for public comment. As stated earlier, 

peer reviewer comments on the status 

review report (Austin 2023) are 

available online at: https://www.noaa.

gov/information-technology/ 

endangered-species-act-status-reviewreport-atlantic-humpback-dolphinsousa-teuszii-id447. 

References 

A complete list of the references used 

is available upon request (see FOR

FURTHER INFORMATION CONTACT). 

Classification 

National Environmental Policy Act 

Section 4(b)(1)(A) of the ESA restricts 

the information that may be considered 

when assessing species for listing and 

sets the basis upon which listing 

determinations must be made. Based on 

the requirements in section 4(b)(1)(A) of 

the ESA and the opinion in Pacific Legal 

Foundation v. Andrus, 657 F. 2d 829 

(6th Cir. 1981), we have concluded that 

ESA listing actions are not subject to the 

environmental assessment requirements 

of the National Environmental Policy 

Act. 

Executive Order 12866, Regulatory 

Flexibility Act, and Paperwork 

Reduction Act 

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts cannot be considered 

when assessing the status of a species. 

Therefore, the economic analysis 

requirements of the Regulatory 

Flexibility Act are not applicable to the 

listing process. 

In addition, this final rule is exempt 

from review under Executive Order 

12866. This final rule does not contain 

a collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

Executive Order 13132, Federalism 

In accordance with E.O. 13132, we 

determined that this final rule does not 

have significant federalism effects and 

that a federalism assessment is not 

required. Given that this species occurs 

entirely outside of U.S. waters, there 

will be no federalism impacts because 

listing the species will not affect any 

state programs. 

List of Subjects in 50 CFR Part 224 

Endangered and threatened species, 

Exports, Imports, Transportation. 

Dated: February 12, 2024. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, the National Marine Fisheries 

Service amends 50 CFR part 224 as 

follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 224 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C 1361 et seq. 

■ 2. In § 224.101, amend the table in 

paragraph (h) by adding an entry for 


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12986 Federal Register / Vol. 89, No. 35 / Wednesday, February 21, 2024 / Rules and Regulations 

‘‘Dolphin, Atlantic humpback’’ in 

alphabetical order by common name 

under ‘‘Marine Mammals’’ to read as 

follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(h) * * * 

Species 1

Citation(s) for listing determination(s) Critical 

habitat ESA rules 

Common name Scientific name Description of listed 

entity 

Marine Mammals 

Dolphin, Atlantic humpback.Sousa teuszii ............. Entire species ............ [Insert Federal Register page where the 

document begins], 2/21/2024.

NA NA 

*******

1Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 

1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 

[FR Doc. 2024–03162 Filed 2–20–24; 8:45 am] 

BILLING CODE 3510–22–P 


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